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Safeway Stores9/26/2002
Argued June 25, 2002
Safeway Stores, Inc. petitions for review of a decision by the Director of the D.C. Department of Employment Services (DOES), which affirmed a compensation order awarding workers' compensation benefits to Jeffrey Watson. Safeway contends that the hearing examiner and the Director erred in concluding that Safeway had failed to produce sufficient evidence to overcome the presumption of compensability, where it had presented two doctors' medical reports which disputed the causal relationship between a September 1998 work-related injury to Watson's left knee and a later secondary disability to his right knee. Additionally, Safeway argues that the hearing examiner's determination that Watson suffered an eighty percent permanent partial impairment of his left lower extremity as a result of the work-related injury to his left knee was not supported by substantial evidence and, in addition, should be discounted by a "credit" reflecting Watson's prior permanent impairment. We conclude that the Director and the hearing examiner erred in placing too high a burden upon the employer to rebut the presumption of compensability with respect to the injury to the right knee and remand to the agency on that ground, but we affirm the agency's decision with respect to the disability resulting from his left knee injury.
I.
Watson first injured his left knee in 1990 while working for a different employer when stairs he was climbing gave way. He had arthroscopic surgery on the left knee, and later, an anterior cruciate ligament reconstruction procedure on the same knee. In August of 1997, Watson injured both his left and right knees while playing basketball. Dr. Hamid Quraishi, who treated him for these injuries, noted tenderness in Watson's right knee and opined that a "McMurray's sign for a torn meniscus positive." Dr. Quraishi informed Watson that he was "developing moderate degenerative changes in the left knee and things will progress," and that nothing could be done to prevent this progression. After an MRI of Watson's left knee, Dr. Quraishi performed a second arthroscopic procedure and then prescribed physical therapy rehabilitation. He released Watson back to work full-time on December 15, 1997.
On September 24, 1998, while working as a seafood deli clerk at the Safeway store in Georgetown, Watson again injured his left knee, as well as his lower back, while removing boxes of frozen salmon from a freezer shelf as several of the boxes toppled and struck his knee. This time, Watson was treated by Dr. William Dorn, who performed a third arthroscopic surgery on Watson's left knee in March of 1999, and informed him that he could continue to expect symptoms and that he would eventually require a complete knee replacement.
Watson claimed temporary total disability benefits from October 16, 1998 through May 1999 for the left knee and back injuries. Safeway contested the compensability of the left knee injury, claiming that it resulted entirely from a pre-existing condition. On June 25, 1999, after a hearing, a DOES hearing examiner issued a compensation order awarding Watson the benefits he had sought. Safeway did not appeal from this order.
Sometime thereafter, Watson filed a second claim for temporary total disability benefits from July 28, 1999, through September 3, 1999, for problems with his right knee stemming from overuse of his right leg to compensate for the injured left knee. He also sought permanent partial disability benefits for the substantial impairment of his left knee. Safeway again contested compensation, this time on the grounds that any disability to the right knee resulted entirely from a pre-existing condition, and
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